Chuck Grassley

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I thank my colleague from Iowa for his very nice remarks about Katie Beckett. I come to the floor for the same reason--to celebrate the life of Katie Beckett. Never has the word ``inspiration'' been used more appropriately in describing somebody, and today I am grateful to be able to recognize the inspirational life of Katie Beckett. Mary Katherine Beckett--nicknamed ``Katie''--was born in Cedar Rapids, IA, on March 9, 1978. Five months after she was born, Katie contracted viral encephalitis, followed by grand mal seizures. The encephalitis caused damage to her central nervous system, her respiratory system, and she was attached to a ventilator. She would be almost 2 years old before she could breathe on her own. As Senator Harkin said, under Medicaid law at the time, Katie could only receive care through Medicaid if she remained in the hospital even though she was able to receive the care at home. Iowa Congressman Tom Tauke heard of Katie's situation and realized that it made no sense to keep a child in the hospital who could be at home with her family living a better quality of life as well as saving the taxpayers money. Congressman Tauke worked to convince the administration that the system should be changed to allow States to provide Medicaid to children receiving care in their homes. Ultimately, President Reagan took up Katie's cause, intervening so that Katie could receive treatment at home and still be covered under Medicaid. This change in policy became known as the Katie Beckett Waiver, and to date more than half a million disabled children have been able to receive care in their homes with their families rather than being forced into hospitals and institutions. But Katie's story doesn't end there. As Katie grew up, as she battled to establish her own place in society as a young American with disabilities, she realized she had an opportunity to serve others who faced similar challenges. In her own words--and this is from a piece Katie wrote in the year 2002 entitled: ``Whatever Happened to Katie Beckett?'' I started my advocacy career at age ten. It was not my choice, but rather a path chosen for me. It was not until I was twelve or thirteen that I realized the important work I was able to do because I was who I was and how much this work helped other kids. Katie graduated with a degree in English from Mount Mercy College in Cedar rapids. She lived in the community. She wanted to be a teacher and write novels for young people. She was fiercely independent, sometimes to the consternation of her mother Julie. She was quick- witted and funny and loved a good cup of coffee. She lived her life as a tireless advocate for the disabled. She testified before Congress several times and was a contributing voice on numerous groups dedicated to disability policy. When we took up policy proposals such as the Family Opportunity Act and Money Follows the Person, we wanted Katie's perspective and we depended upon her advocacy in the community to get those laws passed. Katie was the living embodiment of a person with disabilities participating and contributing in society. On Friday, May 18, Katie went home to be with the Lord. She leaves behind thousands of lives touched by her presence. A light may go out, but a light lives on in those of us fortunate enough to have known Katie Beckett. We remain inspired to work every day to create opportunities for the disabled to participate and contribute and live the life of service and dedication that Katie did. So, obviously, even though not alive today, Katie will remain that inspiration for many people for a long time to come. Thank you very much. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, today we are going to turn to a nomination that the Senator from California has just referred to, Paul Watford, to be circuit judge for the Ninth Circuit. I am disappointed that the majority leader has brought this nomination to the floor. The reason I say that is there are at least 10 nominations on the Executive Calendar that might fall into the category of consensus nominees. Six nominees on the calendar had significant opposition in committee and clearly are not consensus nominees. Mr. Watford falls into this category of not being a consensus nominee. I will oppose Mr. Watford's nomination and ask my colleagues to oppose the nomination as well. My opposition to this nomination is based upon substantive concerns that I have regarding Mr. Watford's views on both immigration and the death penalty. Mr. Watford partnered with the American Civil Liberties Union and the National Immigration Law Center in two cases to oppose Arizona's 2010 immigration bill. In the first case, Friendly House, a class action lawsuit, Mr. Watford served as cocounsel for most of the plaintiffs, including the class action representative Friendly House. The Friendly House complaint attacks the Arizona law on a variety of grounds. He argued the law violates the Supremacy clause; that it violates the Equal Protection clause by promoting racial profiling; that it violates the first amendment by chilling the speech of non- English speakers; that it violates the fourth amendment; and that it violates due process by inviting racial profiling and employing vague definitions of ``public offense'' and other statutory terms. In the second case, United States v. Arizona, Mr. Watford served as cocounsel on an amicus brief filed by the Friendly House plaintiffs. This brief covers most of the arguments raised in the Friendly House complaint. But in addition, it asserts that Arizona ``fails to account for the complexities and realities of Federal immigration law'' because individuals lacking immigration registration documents are put at risk of ``constant and repeated criminal prosecution.'' I do not believe an attorney should be held accountable for the legal positions he advocates on behalf of a client. Of course, there are some exceptions to that general rule; for instance, if the legal positions are far outside the mainstream of legal theory, are frivolous or indicate an unacceptable level of professional competence. However, in this case, Mr. Watford has not simply argued on behalf of a client, he adopted those legal theories as his very own. On July 14, 2010, Mr. Watford gave a speech analyzing the constitutionality of the Arizona law. His speech concentrated on ``why S. 1070 is unconstitutional,'' and he recapped many of the arguments he made in the Friendly House case. Moreover, despite the fact that he discussed his views on immigration publicly, he nonetheless declined to answer many of my questions during his hearing before the Judiciary Committee. For instance, I asked about an argument in his brief that the Arizona statute prohibiting illegal aliens from soliciting work somehow violated the first amendment. The nominee responded that it would be inappropriate for him to comment on questions related to whether illegal immigrants were entitled to constitutional protections other than those contained in the fifth, sixth and fourteenth amendments. Again, remember, he had already given a speech on this topic, so I was disappointed that he would not share his views on these important topics. With regard to the death penalty, Mr. Watford assisted in submitting an amicus brief to the Supreme Court in Baze v. Rees on behalf of a number of groups that opposed Kentucky's three-drug lethal injection protocol. In its plurality opinion, the Court rejected the arguments raised in the brief. Ultimately, Kentucky's three-drug protocol was upheld on a 7-to-2 vote in the Supreme Court. At the hearing we had for Mr. Watford, in following up questions, Mr. Watford gave the standard response that he would follow Supreme Court precedent regarding the death penalty. Yet it is very curious to me that he would go out of his way to provide his services to a case that would undermine the death penalty. Furthermore, his concession that he would give consideration to foreign or international law in interpreting the meaning of the Cruel and Unusual Punishment clause makes me wonder how he would approach this issue. I have other concerns based on positions this nominee has taken in his legal advocacy, as well as some of his presentations. I am generally willing to give the President's nominees the benefit of the doubt when the nominee on the surface meets the requirements I have previously outlined. But I don't think this nominee meets these requirements. Finally, Republicans continue to be accused of obstruction and delay when it comes to judicial nominations. This comes even as we have now confirmed 145 of this President's district and circuit court nominees. That, of course, is during a period when we also confirmed two Justices to the Supreme Court. The last President who had two Supreme Court nominees had only 120 confirmations. So this argument of obstruction, of delay, and of unfairness doesn't hold up. I remind my colleagues on the other side of the aisle of the obstructionism, delay, and filibusters, which they perfected. The history of President Bush's nominees to the ninth circuit provides some very important examples. President Bush nominated nine individuals to the ninth circuit. Three of those nominations were filibustered. Two of those filibusters were successful. The nominations of Carolyn Kuhl and William Gerry Myers languished for years before being returned to the President. A fourth nominee, Randy Smith, waited over 14 months before finally being confirmed after his nomination was blocked and returned to the President. After being renominated, he was finally confirmed by a unanimous vote. President Obama, on the other hand, has nominated six individuals to the ninth circuit. Only one of those nominees was subject to a cloture vote. After that vote failed, the nominee withdrew. If confirmed, Mr. Watford will be the fourth nominee of President Obama nominated to serve on the ninth circuit. Those four confirmations took an average of about 8 months from the date of nomination. For all of President Obama's circuit nominees, the average time for nomination to confirmation is about 242 days. For President Bush's circuit nominees, the average wait for confirmation was 350 days. Given this history that I have spelled out, one might wonder then why President Bush and his nominees were treated differently and so much more unfairly than President Obama's nominees. Mr. Watford received his B.A. from University of California, Berkeley in 1989 and his J.D. from the University of California, Los Angeles (UCLA) School of Law in 1994. Upon graduation, he clerked for Judge Alex Kozinski on the Ninth Circuit and then for Justice Ginsburg on the Supreme Court. In 1996, he began working as an associate in the Litigation Department at the Los Angeles law firm of Munger, Tolles & Olsen. From 1997 2000, Mr. Watford was an Assistant United States Attorney in the U.S. Attorney's Office for the Central District of California, in Los Angeles, handling a variety of criminal prosecutions, such as immigration, narcotics, firearms trafficking, bank robbery, computer fraud, mail and wire fraud, and securities fraud. In 2000, Mr. Watford returned to private practice as an associate in the appellate practice group at Sidley & Austin's Los Angeles office. In 2001, he rejoined Munger, Tolles & Olsen as an associate, becoming a partner there in 2003. His practice focuses primarily on appellate litigation, specifically business and commercial disputes. Mr. Watford has also taught a course on Judicial Opinion Writing at the University of Southern California's Gould School of Law for three semesters (2007, 2008, and 2009). The ABA Standing Committee on the Federal Judiciary unanimously rated him as Well Qualified for this position. I yield the floor and suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. I am not prepared to speak for our side.

Mr. GRASSLEY. Mr. President, adopting a budget for the country is one of the most basic responsibilities and fundamental functions of the Congress. The Budget Act of 1974 requires Congress to adopt a budget by April 15 each year. It is a requirement that this Senate majority has ignored time and again. In fact, the Senate hasn't adopted a budget since April 29, 2009. More than 3 years have passed since the Senate last adopted a budget. During that time, more than $4 trillion has been added to our Nation's debt. In President Obama's Presidency, we have added $5 trillion to the national debt. So we are in the midst of the fourth consecutive year of $1 trillion deficits. All the while, the Senate Democratic majority has failed to propose a budget blueprint that would lay out their priorities for deficit reduction, economic growth, and a path to balance. It is no wonder, then, our Nation is driving toward a fiscal cliff of deficits and debt. There is no one in the Democratic leadership willing to take hold of the wheel of this vehicle. In February, President Obama released his budget. The President's 2013 budget would expand the scope of government by spending more money, increasing taxes on job creators, and continue on the path of enormous deficit and record debt. While President Obama claims his budget will create an America built to last, the only thing his budget builds, it seems to me, is higher deficits and debt--a bigger and more intrusive government and economic decline for future generations. During the past 60 years spending has averaged about 21 percent of GDP. Over the 10-year window of President Obama's budget, spending never gets below 22 percent. In dollar terms, spending goes up from the present $3.8 trillion to $5.8 trillion in the year 2022. So it is very clear President Obama is built to spend. President Obama's budget is also harmful to our fragile economy because it would impose a $1.9 trillion tax increase. Maybe the President's purpose in imposing this huge tax increase is an effort to reduce the Nation's debt. Unfortunately, that is not what he has planned in his budget. He wants to spend every dollar. His budget runs deficits totaling $6.4 trillion over the next 10 years. Debt held by the public increases from 74.2 percent of our economy today to 76.33 percent in 2022. Of course, we need to remember that the historical average since World War II has been about 43 percent of the economy. If people believe President Obama is putting us on a path to fiscal sustainability, I would suggest that they look at the annual deficits over the next 10 years. They never drop below $575 billion, and they actually go up at the end of his budget, rising to $704 billion in 2022. President Obama's budget puts America on the course of deficits and debt as far as the eye can see into the future. The President also took a pass on proposing any real changes to our entitlement programs, which are a real driver of future deficits and debt. Again, he is absent from the discussion. He has no solution. He has chosen not to lead. But where is the leadership from the Senate majority? Where is their budget? Why have they not proposed a budget in more than 3 years? The budget chairman has said repeatedly that we already have a budget in place for this year and even for next year. The chairman and majority leader believe the Budget Control Act was a budget resolution. The Budget Control Act is not a budget. President Obama clearly agreed when he proposed his budget. House Republicans and Democrats alike agreed when they voted on seven budget resolutions offered by both Republicans and Democrats. The Democratic leadership in the Senate stands alone in their belief that the Budget Control Act was a budget resolution. Is it because they have no ideas on how to balance the budget, contain out-of-control spending, grow the economy, or create jobs? If the Democratic majority can't muster the will to present their own budget, why don't they offer President Obama's budget? I am sure we will hear the argument that the resolution our side is offering is not a fair depiction of President Obama's budget. That is the rhetoric we will likely hear so that they can vote against it. The fact is they are going to vote against it for one reason, just like a year ago; that is, because it is President Obama's budget. They don't want to be on record voting for any budget. That will be the most remarkable outcome of today's exercise. We are going to vote on five different budget proposals. Three are being offered by Senate Republicans, one is Budget Chairman Ryan's budget, and the final resolution is President Obama's budget. Not only have Senate Democrats failed to even propose a budget, they will likely vote in lockstep against each of the five budget proposals. We are likely to see Senate Democrats come to the floor one by one and cast roughly 265 votes against the consideration of any budget. Is that leadership? Is that conviction? They are in the majority. When it comes to proposing and supporting a budget, they are the party of no and the party of obstruction. Democrats are the party filibustering consideration of budget blueprints. My friend, the budget chairman, was quoted recently as saying: This is the wrong time to vote in committee. This is the wrong time to vote on the floor. I don't think we will be prepared to vote before the election. How many more trillions do we need to add to the national debt before it is time to vote on a budget resolution? If now is not the time to lead, propose bold solutions and take action, when is? The American people are going to pay a heavy price for the unwillingness and inability of the Senate majority to lead and to offer solutions. Once again, the Senate majority and its leadership and President Obama are content to be absent from the discussion. Three years without this sort of debate is proof of that. There are no solutions; there is no leadership. There is only failure and punting until after the next election. We have a moral obligation to offer serious solutions for today--most importantly for future generations. I yield the floor.

Mr. GRASSLEY. Ten minutes or a little less.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, as cofounders and cochairs of the Senate Caucus on Foster Youth, Senator Landrieu and I offer a resolution to recognize May as National Foster Care Month. The resolution is an opportunity to raise awareness about the challenges faced by children in the foster care system. It is also a time to acknowledge the dedication of foster care parents, advocates, and workers who are changing the lives of children every day. National Foster Care Month was established more than 20 years ago to bring foster care issues to the forefront. Today we continue to see almost a half million children who are unable to remain at home because of abuse or neglect or because of other family issues. During this separation, foster youth face loneliness, instability, and grief. Unfortunately, children in foster care experience an average of three different placements which often lead to disruption of routines. Some are required to change schools and move away from siblings, extended families, and familiar surroundings. They face educational instability and, as a result, score lower on all academic measures than peers. Foster youth have to overcome misperceptions and stigmas and deal with emotional pain and trauma that comes from such separation. It becomes a reality for many children every day. In 2010, about 254,000 children entered into care. While many are reunified with their families or adopted into new ones, more than 107,000 children were awaiting adoption at the end of 2010. The Senate Caucus on Foster Youth is providing a voice for these foster young people. Senator Landrieu and I founded this caucus in 2009 to raise awareness of issues challenging foster youth, including educational stability, substance abuse, sexual exploitation, and the overprescription of psychotropic drugs. We hear from youth about policies that affect their quality of life. Among other activities, the caucus sponsors a speakers series to bring the best ideas from the field to us policymakers in Washington, DC. Today I invite my colleagues to join us on this caucus, to get involved and to make a difference. Senator Landrieu and I created the foster care caucus in the Senate to focus on all youth in the system, but we have particular focus on older children who may lack the security or support of a biological or adoptive family. These kids tend to age out of the foster care system, then struggle in creating a stable life that many of us often take for granted. More than 27,900 youth age out of foster care without a legal, permanent connection to an adult or family. We must focus on how to reduce this number from year to year. We have made great strides over the years, and we have done so in a bipartisan manner. In 2006, the Senate Finance Committee held the first hearings on child welfare in more than a decade. The hearings led to passage of the Child and Family Services Improvement Act, which improved programs designed to help troubled families, provided grants for States and community organizations to combat methamphetamine addiction and other substance abuse, and increased case worker visits for children in foster care. It also supported grants to strengthen and improve collaboration between courts and child welfare agencies. In 2008 I introduced the bill that became the Fostering Connection to Success and Increasing Adoption Act. This bipartisan bill made it easier for children to stay in their own communities and be adopted by their own relatives, including grandparents, aunts, and uncles. It provided incentives for States to move children from foster care to permanent adoptive homes, and it made all children with special needs eligible for Federal adoption assistance. The law also broke new ground by establishing opportunities to help kids who age out of the foster care system at age 18 by giving States the option to extend their care in helping them pursue educational and vocational training. Last year, to try to prevent children from having to enter the foster care system in the first place, I worked to reauthorize grants that support families who struggle with substance abuse and improve the safety, permanency, and well-being of children who are not in their homes or are likely to be removed from their homes because of substance abuse by parents. Children in the foster care system yearn for permanency, and these grants help keep families together when possible so the children are not subject to the many difficulties they face in the foster care system. But Congress, as you know, must be vigilant. We must always keep our eyes on the prize; that is, a safe, loving and permanent home for every child. We must always stress prevention as well as reunification and the reunification services because these two key components are necessary to reduce the number of children who are forced to remain in foster care. Finally, let me take a moment to pay tribute to many volunteers, guardians, mentors, and workers in the child protective service community. Every person in this field plays a vital role in improving the safety of our most vulnerable youth, and our country is better off for that. They are dedicated and important to thousands of children and can be very positive influences for families across the country. This month of May is the time to pay tribute to the community. It is time to remember these young people. More important, it is time to encourage others to get involved and, hence, make a difference. It is my hope that this awareness will extend beyond me, and people will recognize the need to step up and to fight for these vulnerable youth on a daily basis. I encourage Members to cosponsor our resolution, and I especially appreciate the cooperation and working relationship I have had with Senator Landrieu on this subject of adoption, foster care, and, in particular, for aging-out young people. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I will be urging the people in my caucus to vote for these nominees, both of them. Today, the Senate is expected to confirm these two nominees: Judge Russell to the District of Maryland and Mr. Tharp to the Northern District of Illinois. As I said, I support the nominees, and I do, in fact, expect that both of them will be confirmed. We continue to confirm the President's nominees at a brisk pace. In fact, with today's confirmations, we will have confirmed 145 of President Obama's district and circuit court nominees. I would like to put this in perspective. We confirmed two Supreme Court nominees during President Obama's term so far. Everyone knows it takes a tremendous amount of time and resources to consider Supreme Court nominees. The last time the Senate confirmed two Supreme Court nominees was during President Bush's second term. During President Bush's entire second term, the Senate confirmed only 120 district and circuit court nominees. Compare that, if you will, to the 145 district and circuit court nominees we have confirmed so far since President Obama has become President. Let me say that same thing a different way. We have confirmed 25 more nominees for President Obama than we did for President Bush in a similar time period. Of course, President Obama's term is not over yet. With these facts in mind, I hope my colleagues will understand why I get a little frustrated when I hear all of these complaints about how we are not confirming enough nominees. The fact is President Obama is being treated much more fairly than Senate Democrats treated President Bush. It is especially frustrating to hear the other side complain about the vacancy rate. The fact is the Senate is doing its job. We are confirming the nominees who are sent to us. Of course, we cannot confirm nominees who are not up here from the White House. If there is a problem, then it rests with the President. Right now, there are 77 judicial vacancies. But the President has made only 29 nominations. That means 48 vacancies or over 60 percent-- actually, nearly 63 percent--have no nominee. Stating it another way, there are currently 44 million Americans living in districts with vacancies where the President has not submitted a nominee to the Senate. I suspect the President neglected to share that statistic with all the groups he summoned to the White House 1 week ago today to discuss judicial nominees, probably with the point of getting those organizations to put more pressure on the Congress to approve more nominees, and somehow approve nominees who are not even here yet for us to approve. I could go on, but I do not intend to. I do not like to get into this back-and-forth with the other side. But it gets a little tiresome to hear the same misleading statements over and over. I want to set the record straight, and I have done that. I congratulate the nominees who will be confirmed tonight. Both the nominees and their families should be proud. George Levi Russell III, presently serving as an associate judge to the Circuit Court of Maryland, is nominated to be U.S. District Judge for the District of Maryland. Judge Russell received his BA from Morehouse College in 1988 and his JD from the University of Maryland School of Law in 1991. Upon graduation from law school, he clerked for Hon. Robert M. Bell, chief judge for the Court of Appeals of Maryland. Judge Russell then worked as an associate at the law firms Hazel and Thomas, P.C. and Whiteford, Taylor, and Preston, where he handled cases involving personal injury, product liability, and medical malpractice. In 1994, Judge Russell became an assistant U.S. attorney for the U.S. Attorney's Office for the District of Maryland. He worked in the civil division for 5 years, defending government agencies in discrimination, automobile accident, and medical malpractice cases. In 2000, Judge Russell rejoined the private sector for 2 years, working at the law offices of Peter G. Angelos, where he represented plaintiffs in class action and private personal injury cases. In 2002, he returned to the U.S. Attorney's Office and joined the criminal division for 5 years. There Judge Russell prosecuted those accused of violent crimes and narcotics cases. In 2007, then-Governor Robert Ehrlich appointed Judge Russell to be an associate judge on the Circuit Court of Maryland for Baltimore City. In November 2008, he was elected to a 15-year term. Judge Russell has sat on each of the four dockets of this court: criminal, civil, family, and juvenile. The ABA Standing Committee on the Federal Judiciary has given Judge Russell a rating of Substantial Majority ``Qualified'' and Minority ``Not Qualified'' for this position. John J. Tharp, Jr., is nominated to be U.S. district judge for the Northern District of Illinois. Mr. Tharp was first nominated to this position by President Bush in 2008. Mr. Tharp received his BA from Duke University in 1982 and his JD from Northwestern University School of Law in 1990. Mr. Tharp served in the U.S. Marine Corps from 1982 to 1988, became a captain in 1987, and has received several military honors. Following graduation from Northwestern University School of Law in 1990, Mr. Tharp began his legal career as a clerk for Judge Flaum on the Seventh Circuit Court of Appeals. After working as an associate at Kirkland & Ellis for a year, he joined the U.S. Attorney's Office for the Northern District of Illinois, Chicago, as a Federal prosecutor where he served in the Criminal Receiving and Appellate Division, General Crimes Division, and Organized Drug Enforcement Task Force. He handled cases involving narcotics and money laundering investigations, financial frauds, political corruption, tax crimes, bank robberies, and firearms offenses. In 1997, Mr. Tharp left the U.S. Attorney's Office and moved to his current firm, Mayer Brown, where his practice focuses on civil concerns, including tort, contract, intellectual property, environment, tax, and unfair competition claims, securities fraud, professional liability, and governmental investigations. In 2009, Mr. Tharp's firm selected him to serve as coleader of the securities enforcement practice. In 2010, that group merged with the securities litigation group, and he continues to serve as coleader of the combined Mayer Brown securities litigation and enforcement practice. He has an ABA rating of Unanimous ``Well Qualified.''' I urge my colleagues to support these nominees. I think they probably will be supported overwhelmingly. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, a strong economy needs affordable, abundant, and reliable energy. In recent years, Americans have experienced higher prices for energy across the spectrum. This has led to an enormous growth in private and public research and development of innovative and advanced energy technologies. These innovative technologies include fuel from algae, solar, and wind generation, battery manufacturing, advanced nuclear, and many others. I recently had an opportunity to visit with Virgil Vanderloo, of Ackley, IA. It was immediately apparent that Virgil has a passion for new and innovative ideas regarding hydroelectric power generation. Virgil does not have an engineering background he is a retired farmer. For 30 years he farmed land in Hardin, Plymouth, and Woodbury Counties. It is because of this time as a farmer that Virgil came to appreciate the land and its rich natural resources. Now, he is pursing a concept to capture the power from our Nation's rivers to generate electricity. After speaking with Mr. Vanderloo and reviewing the material he compiled, he believes that his concept may have the potential to increase the production of hydroelectricity and capture a renewable energy source that currently goes uncollected. Mr. Vanderloo's concept includes placing barges below dams fitted with water turbines to produce electricity. He reasons that this type of electricity generation could be viable on the 30 or so dams along the Mississippi River. If viable, this concept could conceivably be implemented on many of the more than 50,000 nonpowered dams in the United States. After all, the U.S. Department of Energy just last month published a study that indicated the United States could get as much as 12 gigawatts of energy per year by utilizing the hydropower potential of existing dams. The idea proposed by Virgil could be one the innovations in hydropower technologies that could help us use existing dams to generate renewable energy. I would like to make an appeal to hydroelectric designers and engineers to review the concept presented by Mr. Vanderloo. I have posted his information on the Internet which can be accessed at httP// 1.usa.gov/JlA5Ky. I hope those with scientific and engineering expertise in this area will review his proposal and contact him directly. It may have promise, and I hope this brings attention to his ideas regarding hydroelectric power generation.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, today I wish to honor the life of LTC Robert B. Shain, who passed away on Sunday, April 29, 2012. I would like to express my condolences to Lieutenant Colonel Shain's family, in particular his wife of 52 years, Sherry, his two daughters, Cynthia and Stephanie, his son, Michael, and his three grandkids, Bella, Jason, and Mia. He is also survived by his sister-in-law, Nancy, and many nieces and nephews. Robert Shain had an honorable and extensive career which began upon his graduation from the Military Academy at West Point in 1959. He served in the US Army for 20 years as an infantry officer as well as a fixed-wing and helicopter pilot. He completed two tours of duty in Vietnam and was awarded the Legion of Merit, two Distinguished Flying Crosses, two Bronze Stars, 27 Air Medals with V for valor, Meritorious Service Medal, Vietnamese Medal of Honor, and Vietnamese Cross of Gallantry. He served as commander of the Executive Flight Detachment and pilot of the presidential helicopter, Army One, for presidents Nixon and Ford from 1973 to 1976. Following his retirement, he enjoyed a long professional career in the aeronautics industry. He was an active supporter of the National Rifle Association and a member of the Military Officers Association. However, I understand that his greatest joy in life was spending time with his loving family. Bob Shain lived every aspect of his life whether service to his country, to his family, or to his business with unrivaled pride and dignity. The career of Lieutenant Colonel Shain serves as a reminder of the sacrifice and commitment that has carried our great nation through the toughest of times. His service to the people of the United States and the State of Iowa is worthy of much admiration and respect. I am grateful for his service and pay tribute to his patriotism.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GRASSLEY. Mr. President, is it appropriate in the Senate schedule to start debate on the judges?

Mr. GRASSLEY. Mr. President, today the Senate is expected to confirm three additional judicial nominees. With the confirmation of Judge Nguyen to the ninth circuit, Ms. Baker to the Eastern District of Arkansas, and Mr. Lee to the Northern District of Illinois, we will have confirmed 83 judicial nominees during this Congress. It is somewhat ironic that today, according to press accounts, the White House is holding a forum and strategy session with administration officials and 150 supporters from across the country concerned about the judicial vacancy rate. I wonder if at this strategy session the White House took a look in the mirror when addressing the vacancy rate. Only the President can make nominations to the Senate. While we have a responsibility to advise and consent on those nominations, Senators cannot fill vacancies unless people are nominated for those positions. I would note the President has failed to do this in 47 of the 76 remaining vacancies, including 21 of 35 seats designated as judicial emergencies. That is more than 60 percent of the current vacancies with no nominee. The White House and the Senate majority are fond of their claim that millions of Americans are living in districts with vacancies. Of course, what the other side fails to tell you is that 88 million Americans live in judicial districts where vacancies exist because the President has failed to nominate judges. Most of those seats have been vacant for more than a whole year. Once again, if the White House is serious about judicial vacancies, it holds the key to nominating and filling those vacancies. It has failed in too many instances to use that key. Furthermore, according to the press accounts, in its invitation, the White House accused Republicans of subjecting consensus nominees to ``unprecedented delays and filibusters.'' This is a statement without factual basis, and it ignores the record of judicial nominations. I would note that after today's confirmation, there are 12 nominees on the Executive Calendar that might fall into the category of consensus nominees. Seven nominees on the calendar had significant opposition in the committee and clearly are not consensus nominees. The substantial majority of those 12 nominees were reported out of committee less than 10 legislative days ago. Not only is there no filibuster against any of the consensus nominees, but I am not sure how there can be accusation of delay and particularly partisan delay. Let me remind my colleagues on the other side of the aisle of the obstructionism, delay, and filibusters which they perfected. The history of President Bush's nominees to the Ninth Circuit provides some examples. President Bush nominated nine individuals to the Ninth Circuit. Three of those nominations were filibustered. Two of those filibusters were successful. The nominations of Carolyn Kuhl and William Gerry Myers languished for years before being returned to the President. A fourth nominee, Randy Smith, waited over 14 months before finally being confirmed after his nomination was blocked and returned to the President. After being renominated, he was finally confirmed unanimously. President Obama, on the other hand, has nominated six individuals to the Ninth Circuit. Only one of those nominees was subject to a cloture vote. After the vote failed, the nominee withdrew. Today we confirm the third nomination of this President to the Ninth Circuit. Those three confirmations took an average of about 8 months from the date of nomination. For all of President Obama's circuit nominees, the average time from nomination to confirmation is about 242 days. For President Bush's circuit nominees, the average wait for confirmation was 350 days. One might ask why President Bush was treated so differently, with so much more delay than this President has been treated or his nominees have been treated. Another example of past Democratic obstruction and delay is in Arkansas. Today we confirm President Obama's nominee to the Eastern District of Arkansas within about 6 months of her nomination. I would note that President Bush's nominee, Jay Leon Holmes, sat on the Executive Calendar for more than 14 months awaiting confirmation. From nomination, his confirmation took over 17 months. Again, why were President Bush's nominees treated worse than this President's nominees? I can only conclude that the White House has selective memory or different definitions when it accuses Republicans of unprecedented delay and obstructionism. I am disappointed that the President continues to blame Republicans for vacancies that have no nominee and chooses to follow the political strategy of blaming rather than working with the Senate to nominate consensus nominees. In other words, why isn't the President, instead of having a conference on why there are judicial vacancies, taking the same amount of time to get the names up here so we can work on them? Mr. President, Jacqueline Nguyen, presently serving as a U.S. district judge, is nominated to be a U.S. circuit judge for the Ninth Circuit. Judge Nguyen received her A.B. from Occidental College in 1987 and her J.D. from the University of California, Los Angeles School of Law, in 1991. She began her legal career as an associate in the Litigation Department at the Los Angeles law firm of Musick, Peeler & Garrett where she handled litigation matters involving commercial disputes, intellectual property, and construction defects. From 1995 until 2002, Judge Nguyen was an Assistant U.S. Attorney in the U.S. Attorney's Office for the Central District of California. There, she handled the investigation and prosecution of human trafficking, immigration fraud, mail and tax fraud, and money laundering cases. In 2000, Judge Nguyen became deputy chief of the General Crimes Section. In that position, she handled the training and supervision of all new Assistant U.S. Attorneys and various types of criminal cases involving violent crimes, drug trafficking, firearms violations, and fraud. In 2002, Governor Gray Davis appointed Judge Nguyen to the Superior Court for the County of Los Angeles. In 2009, she was nominated by President Obama to be U.S. district judge for the Central District of California. The Senate approved her nomination on December 1, 2009 by a vote of 97 0. In her capacity as a judge, she has presided over thousands of cases. The ABA Standing Committee on the Federal judiciary unanimously rated her as ``qualified'' for this position. Kristine Gerhard Baker is nominated to be U.S. district judge for the Eastern District of Arkansas. Ms. Baker received her B.A. from St. Louis University in 1993 and her J.D. from University of Arkansas School of Law in 1996. She served as a law clerk for the Honorable Susan Webber Wright, then the chief judge of the United States District Court for the Eastern District of Arkansas. In 1998 she became an associate in the law firm Williams & Anderson, LLP, where she handled commercial litigation cases involving breach of contract and fraud. In 2000, Ms. Baker joined the law firm Quattlebaum, Grooms, Tull & Burrow, PLLC. Her focus at the firm has been devoted to complex commercial litigation cases, including cases involving employment discrimination, securities violations, unfair competition, sic products liability, Fair Housing Act claims, and Freedom of Information Act claims. She has handled in administrative proceedings and in Federal and State court claims for discrimination, harassment, and wrongful termination as well as claims arising under the Family and Medical Leave Act, the Americans with Disabilities Act, and the Employee Retirement Income Security Act. The ABA Standing Committee on the Federal Judiciary gave her a substantial majority rating of ``well qualified'' and a minority ``qualified.'' John Z. Lee is nominated to be U.S. district judge for the Northern District of Illinois. Mr. Lee received his A.B. from Harvard College in 1989 and his J.D. from Harvard Law School in 1992. He began his legal career as a trial attorney for the United States Department of Justice, Environment & Natural Resources Division. There he represented the United States in Federal courts on issues primarily involving environmental statutes. He also served as special assistant to the counsel to former Attorney General Janet Reno. In 1994, he left the public sector to take a job as an associate at Mayer Brown. In 1996, he joined a new firm, Grippo & Elden, as an associate. In 1999, he moved to his current firm, Freeborn & Peters. There he made income partner in 2001 and equity partner in 2004. In private practice, Mr. Lee has focused almost entirely on litigation, expanding his expertise to complex commercial disputes, including cases involving antitrust, intellectual property, employment, and business tort issues. Most of these cases were in Federal courts, particularly the Seventh and Ninth Circuits. He also represented clients in criminal investigations of antitrust and financial regulations violations. In private practice, he represents public and private companies, individual businesspersons and low-income clients pro bono. He has an ABA rating of substantial majority ``qualified,'' minority ``not qualified.'' I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I have seen the good the law called the Violence Against Women Act has done in providing victim services in my State of Iowa. We all recognize the harm that flows from domestic violence. It is harmful to the victims as well as the families of victims. I have supported reauthorization of the Violence Against Women Act each time it has come up. The Violence Against Women Reauthorization on each of these occasions has been highly bipartisan. We have passed consensus bills and we have not played politics with reauthorizing the law; that is, until now. This time it seems to be different. I don't know why it should be. The majority turned this issue into a partisan issue. In the Judiciary Committee, the majority gave no notice it would inject new matters into the Violence Against Women Act. When the committee held a hearing on this issue, these ideas were not discussed. Their need has not been demonstrated. We do not know exactly how they will work. It was clear committee Republicans would not be able to agree to this new added material. Of course, the majority refused during negotiations when we asked they be removed. Republicans will be offering a substitute amendment to the Leahy bill. Probably 80 to 85 percent of the substitute we are offering is the same as the Leahy bill. This includes whole titles of the bill. We could have again reached a near consensus bill to reauthorize the Violence Against Women Act, but the majority intentionally decided not to change the bill. They didn't want it to pass with an overwhelming bipartisan majority. Now the media has reported this was a deliberate strategy of the majority. A recent Politico article quoted a prominent Democratic Senator. The article said he ``wants to fast track the bill to the floor, let the GOP block it, then allow Democrats to accuse Republicans of waging a war against women.'' This is the cynical, partisan game-playing Americans are sick of. At every town meeting people say to me: When are you going to get together and stop the partisanship? This is especially the case on this bill. Republicans aren't even blocking the bill. We have called for the bill to be brought up. Instead, the majority has taken 6 months to reauthorize this program that expired last October. That says something about the priorities of the other party. For instance, last week, we wasted time on political votes. That seems to be the case in the Senate most of this year. The Senate can pass a bill to reauthorize the Violence Against Women Act by an overwhelming margin, but it seems as though the other party doesn't want that to happen. When they say unfavorable things about Republicans and women, they aren't being forthright. A few weeks ago, the Democratic Congressional Campaign Committee sent out a fundraising e- mail. The e-mail stated, in part: Now, there are news reports that Republicans in Congress will oppose re-authorizing the Violence Against Women Act. Enough is enough! The Republican War on Women must stop NOW . . . Will you chip in $3 by midnight tonight to hold Republicans accountable for their War on Women? The majority had a decision between raising money for campaigns or trying to get the Violence Against Women Act reauthorization bill that would actually help these victims. I say to my colleagues, there is no war on women except the political one. It is a figment of the imagination of Democratic strategists who don't want to remember health care reform, unemployment or high gas prices. Instead of talking about those issues--particularly high gas prices--they would rather make up a war against women. All evidence points to the other side being more interested in raising money. The media has also reported the bill is coming out now because the Democrats' desire to gin up a Republican so-called war on women was derailed last week, I suppose by other issues. It should be clear at the outset Republicans are not blocking, have not blocked, and never threatened to block the Senate's consideration of this bill. The Judiciary Committee only reported the bill to the Senate 2 months ago. It was March before the committee filed its usual committee report to the entire Senate. Democrats immediately came to the floor and urged the bill to come up right now. It was up to the majority leader to decide when the bill should be debated. He finally decided--not right after the bill was reported out of committee or not right after the committee report was filed--to do it now. Why not back then? As long as there is a fair process for offering amendments, including our alternative bill and pointing out the flaws in the majority's bill, this should be a relatively short process. As the previous speaker said, I hope we can get it done this very day. There are several other important points I wish to establish. First, I hope a consensus version of the Violence Against Women Act will be reauthorized. If a consensus bill doesn't pass, no rights of women or anyone else will be affected if the bill does not pass because, contrary to the statements made, there would be no cutbacks of services. The Violence Against Women Act--the bill before us--is an authorization bill only, not an appropriations bill. This bill does not allow the expenditure of one dime because that result occurs through the appropriations process. Appropriators can and will fund the Violence Against Women Act programs regardless of whether this bill is reauthorized. This is exactly what happened over the past year. We think new issues have arisen since the last Violence Against Women Act reauthorization. These issues should be addressed in a consensus reauthorization. That can happen. We should give guidance to the appropriators. That is what authorization committees, such as in this case, the Judiciary Committee, is all about. I support the appropriators continuing to fund the Violence Against Women Act while we are trying to put together a consensus bill. The Violence Against Women Act is being funded despite the expiration of its previous authorization. No existing rights of anyone are affected if the Violence Against Women Act is not reauthorized. No existing rights of anyone are affected if we pass a consensus bill rather than this partisan bill--I should say the majority's bill, not the partisan bill. Second, the majority controls how bills move in the Senate. As I said, the current Violence Against Women Act reauthorization expired 6 months ago. If reauthorization was so important, I think the majority party could have moved to reauthorize this bill months ago. They didn't move a bill because no one's substantive rights or funding are at stake. This is true, even though the prior reauthorization has expired and a new reauthorization bill has not yet passed. Third, nothing like the majority's bill, where it does not reflect consensus, will become law. It is a political exercise. The other body, meaning the House of Representatives, doesn't seem as though it is going to pass it the way the majority party here wants it to pass. If we want to pass a consensus violence against women reauthorization bill, we ought to start with the alternative Senator Hutchison and I are going to present to the Senate. Fourth, the majority's bill, as reported out of committee, was and is fiscally irresponsible. According to the Congressional Budget Office, the majority's bill would have added more than $100 million in new direct spending. That will increase the deficit by that same amount. The reason is the immigration provisions that we said previously were nonstarters. These were some of the provisions the majority refused to take out. Those provisions are bad immigration policy. Nonetheless, I am glad the majority has now found an offset for this spending. The Republican alternative does more to protect the rights of victims of domestic violence and sex crimes than does, in fact, the majority bill. There are many ways in which this substitute does that. Under the substitute amendment, more money goes to victims and less to bureaucrats. It requires that 10 percent of the grantees be audited every year. This is to ensure taxpayer funds are actually being used for the purpose of the legislation--to combat domestic violence. This is a very important point. The Justice Department inspector general conducted a review of 22 grantees under this law between 1998 and 2010. Of these 22 audits, 21 were found to have some form of violation of grant requirements. The violations range from unauthorized and unallowable expenditures to sloppy recordkeeping and failure to report in a timely manner. When this happens, the money is not getting to the victims and the taxpayers' money is being wasted. Let me give some examples. In 2010, one grantee was found by the inspector general to have questionable costs for 93 percent of the nearly $900,000 they received from the Justice Department. A 2009 audit found that nearly $500,000 of a $680,000 grant was questionable. The fiscal irregularities continue. An inspector general audit from just this year found that this law's grant recipients in the Virgin Islands engaged in almost $850,000 in questionable spending. Also, a grant to an Indian tribe in Idaho found about $250,000 in improperly spent funds. This included--can my colleagues believe it--$171,000 in salary for an unapproved position. In Michigan this year, a woman, at a VAWA grant recipient facility, used grant funds to purchase goods and services for personal use. We should make sure then that Violence Against Women Act money goes to victims and not to waste such as this. That hasn't been the case, obviously, under the current situation. So our Republican substitute deals with this spending problem. The substitute also prevents grantees from using taxpayer funds to lobby for more taxpayer funds. That will ensure that more money is available for victims' services. Money that goes to grantees and is squandered helps no woman or other victims. In addition, the Republican alternative limits the amount of Violence Against Women Act funds that can go to administrative fees and salaries to 7.5 percent. That means money that now is over the 7.5-percent suggested limit is going to bureaucrats and not to victims. Of course, the underlying bill, the Leahy bill, contains no such limit. If you want the money to go to victims and not bureaucrats, those overhead expenses should be capped at this 7.5-percent level. The Republican substitute amendment requires that 30 percent of the STOP grants and grants for arrest policies and protective orders are targeted to sexual assault. The Leahy-Crapo bill sets aside only 20 percent instead of that 30 percent to fight sexual assault. The substitute Senator Hutchison and I offer--hopefully this afternoon--requires that training materials be approved by an outside accredited organization. This ensures that those who address domestic violence help victims based on knowledge and not ideology. This will result in more effective assistance to victims. The Leahy-Crapo bill contains no such requirement. The Hutchison-Grassley substitute protects due process rights that the majority bill threatens. I will give you an instance. The majority bill said that college campuses must provide for ``prompt and equitable investigation and resolution'' of charges of violence or stalking. This would have codified a proposed rule of the Department of Education that would have required imposition of a civil standard or preponderance of the evidence for what is essentially a criminal charge, one that, if proved, rightly should harm reputation. But if established on a barely ``more probable than not'' standard, reputations can be ruined unfairly and very quickly. The substitute eliminates this provision. The majority has changed their own bill's language. I thank them for that. I take that as an implicit recognition of the injustice of the original language. The substitute also eliminates a provision that allowed the victim who could not prove such a charge to appeal if she lost, creating double jeopardy. The majority bill also would give Indian tribal courts the ability to issue protection orders and full civil jurisdiction over non-Indians based on actions allegedly taking place in Indian country. Noting that the due process clause requires that courts exercise jurisdiction over only those persons who have ``minimum contacts'' with the forum, the Congressional Research Service has raised constitutional questions about this provision. The administration and its supporters in this body pursue their policy agendas headlong without bothering to consider the Constitution. The substitute contains provisions that would benefit tribal women and would not run afoul of the Constitution. We have heard a lot of talk about how important the rape kit provisions in the Judiciary Committee bill are. I strongly support funds to reduce the backlog of testing rape kits. But that bill provides that only 40 percent of the rape kit money actually be used to reduce the backlog. The substitute requires that 70 percent of the funding would go for that purpose and get rid of the backlog sooner. It requires that 1 percent of the Debbie Smith Act funds be used to create a national database to track the rape kit backlog. It also mandates that 7 percent of the existing Debbie Smith Act funds be used to pay for State and local audits of the backlog. Debbie Smith herself has endorsed these provisions. The majority bill has no such provisions. Making sure that money that is claimed to reduce the rape kit backlog actually does so is provictim. True reform in the Violence Against Women Act reauthorization should further that goal. Combating violence against women also means tougher penalties for those who commit these terrible crimes. The Hutchison-Grassley substitute creates a 10-year mandatory minimum sentence for Federal convictions for forcible rape. The majority bill establishes a 5-year mandatory minimum sentence. That provision is only in there because Republicans offered it and we won that point in our committee. Child pornography is an actual record of a crime scene of violence against women. Our alternative establishes a 1-year mandatory minimum sentence for possession of child pornography where the victim depicted is under 12 years of age. I believe the mandatory minimum for this crime should be higher. In light of the lenient sentences many Federal judges hand out, there should be a mandatory minimum sentence for all child pornography possession convictions. But the substitute is at least a start. This is especially true because the majority bill takes no action against child pornography. The alternative also imposes a 5-year mandatory minimum sentence for the crime of aggravated sexual assault. This crime involves sexual assault through the use of drugs or by otherwise rendering the victim unconscious. The Leahy bill does nothing about aggravated sexual assault. The status quo appears to be fine for the people who are going to vote for the underlying bill if the Hutchison-Grassley amendment is not adopted. Instead, the Hutchison-Grassley amendment establishes a 10-year mandatory minimum sentence for the crime of interstate domestic violence that results in the death of the victim. It increases from 20 to 25 years the statutory maximum sentence for a crime where it results in life-threatening bodily injury to, or the permanent disfigurement of, the victim. It increases from 10 to 15 years the statutory maximum sentence for this crime when serious bodily injury to the victim results. The Leahy bill contains none of these important protections for domestic violence victims. The substitute grants administrative subpoena power to the U.S. Marshals Service to help them discharge their duty of tracking and apprehending unregistered sex offenders. The Leahy bill does nothing to help locate and apprehend unregistered sex offenders. And the substitute cracks down on abuse in the award of U visas for illegal aliens and the fraud in the Violence Against Women Act self- petitioning process. The majority bill does not include any reforms of these benefits, despite actual evidence of fraud in the program. One of the Senators who recently came to the floor complained that there had never been controversy in reauthorizing the Violence Against Women Act. But in the past there were no deliberate efforts to create partisan divisions. We always proceeded in the past in a consensus fashion. Domestic violence is an important issue, serious problem. We all recognize that. In the past, we put victims ahead of politics in addressing it. When the other side says this should not be about politics and partisanship, why, heavens, we obviously agree. It is the majority that has now decided they want to score political points above assisting victims. They want to portray a phony war on women because this is an election year. They are raising campaign money by trying to exploit this issue, and I demonstrated that in one of the e-mails that came to our attention. There could have been a consensus bill before us today, as in the past. There is controversy now because that is what the majority seems to want. We look forward to a fair debate on this bill and the chance to offer and vote on our substitute amendment. That amendment contains much that is in agreement with the Leahy bill. The substitute also is much closer to what can actually be enacted into law to protect victims of domestic violence. I yield the floor.

Mr. GRASSLEY. Mr. President, I wish to commend my colleague from Texas, Senator Hutchison, for offering her substitute amendment to the Violence Against Women Act reauthorization bill. I am pleased to cosponsor her amendment. This amendment is vitally needed. The Violence Against Women Act has always been reauthorized in the past on a bipartisan, consensus basis. It would have been so easy to do so again. All of us who support the amendment of the Senator from Texas are in agreement with 80 percent of the bill that is before us. But the majority has decided to place a higher priority on scoring political points than on passing another consensus reauthorization of the law. Recently, Vice President Biden asked what kind of message it would send to women if VAWA were allowed to expire. He implied that a crisis would be at hand that must be avoided at all costs. But the actual answer to his question is clear. The majority party has already allowed VAWA to expire. VAWA's reauthorization expired last October. There has been no crisis of any kind because the appropriations for VAWA programs have kept flowing. It is the majority, not us, that is responsible for the lapse in VAWA's authorization. The way that the Judiciary Committee handled reauthorization this time has been very disappointing. The majority insisted on including--and retaining--provisions that appear designed to provoke partisan opposition. For instance, the majority insisted on giving Indian tribal courts criminal jurisdiction over non-Indian Americans for the first time in our country's history. The committee held one hearing on reauthorizing this bill, and it devoted no attention to exploring how this provision would operate. As a result, the committee described this provision in only four sentences in its report on the legislation. We all recognize that domestic violence rates in Indian country are too high. Both the committee-reported bill and the Hutchison-Grassley substitute contain provisions to address the problem. But the majority cannot explain why expanding the power of tribal courts would be effective or how this would work. Do the tribes have the resources and expertise and resources to comply with the Constitution? How would the Federal courts' caseload be affected by all the new habeas petitions that would necessarily be filed if this became law? What changes would occur in the existing relationships between Federal, State, and tribal law enforcement? The majority has no idea whether this provision would help matters or not because it simply did not give this issue any careful attention. Moreover, the Congressional Research Service has raised several constitutional issues that would be posed by this provision as it was reported from the committee. These include due process, equal protection, fifth amendment grand jury and double jeopardy issues, as well as sixth amendment rights to counsel and a jury trial by one's peers. At the eleventh hour before floor consideration, the majority has recognized the serious constitutional issues that were raised by the committee language. It has changed the language in an effort to respond to the constitutional questions it had denied existed. If we had had a hearing on these questions, matters could have proceeded differently. These changes do not address the constitutional questions CRS posed about congressional power to recognize the inherent power of tribes to prosecute non-Indians, nor do they affect the inability of a defendant to appeal his conviction. And, of course, they do not address the practical concerns that I have raised all along. CRS also raises constitutional due process concerns regarding another section in the bill that would give tribal courts the authority to enforce protective orders. That section remains unchanged. Ironically, the constitutional concerns about the criminal provisions are made more severe because the majority refused to eliminate language we asked them to omit. Constitutional problems are made worse because the bill gives tribes criminal jurisdiction as part of their claimed inherent sovereignty. Our substitute strikes the provisions. Mr. President, I ask unanimous consent to have printed in the Record the relevant portions of the CRS analysis.

Mr. GRASSLEY. Mr. President, to address the real problems of domestic violence among Native Americans, our substitute would permit tribes to petition for protective orders against non-Indians in Federal court. The committee-reported bill did not respect due process in the area of accusations against college students. Of course, allegations of sexual assault on campus should be taken as seriously as anywhere else. But reputations can be ruined by false charges, so it is important that fairness in adjudications occur. As a practical matter, the committee-reported bill imposed on these campus proceedings the standards of proof issued in a controversial proposed regulation by the Department of Education. They were very weak and unfair. Additionally, under the committee-reported bill, if the campus disciplinary authority exonerated the innocent even under the weak standard of proof, the accuser could appeal for another round of proceedings. That just is not fair. At the last minute, the majority has changed the first but not the second of these provisions. Now, the investigation must be fair and impartial. That is progress. This change should have been made much earlier. But the bill still allows a person who has been found innocent after a fair investigation to be pursued again at the victim's request. Our substitute eliminates that unfairness. The committee bill also mishandles immigration issues. The one hearing the Judiciary Committee held presented testimony that fraud exists in the VAWA-self petitioning process. We heard from victims who fell in love with foreign nationals, sponsored them for residency in the United States, only to be accused of abuse so that the foreign national could get a green card. The chairman promised at the hearing to include language in the bill that would address this immigration fraud, but his bill fails to include anything of the sort. Our substitute contains language that will reduce fraud and abuse by requiring an in person interview whenever possible with the applicant who alleges abuse. We cannot allow people to misuse the VAWA self-petitioning process to obtain a green card. The committee-reported bill also expands the number of U visas by tens of thousands without changing the rules by which they are issued. Under current law, an individual may be eligible for a U visa if he or she has been or is likely to be helpful to the investigation or prosecution of a crime. However, the requirements for a U visa are generous. There is no requirement that an investigation be commenced as a result of the alien reporting the crime; there is no time period within which an alien has to report the crime; the crime could have occurred years before it is reported and there could be no way to identify the perpetrator; the alien seeking the ``U'' visa could even have a criminal record of their own. Our substitute includes commonsense, best practices to ensure that U visas are truly used as a tool to fight crime. The Hutchison-Grassley substitute amendment will better protect victims of domestic violence than does the underlying bill. Hundreds of millions of dollars in grant money for domestic violence programs are distributed every year. For that money to be effective, it must actually reach victims. But too much of the money does not reach victims. Excess amounts are spent on administrative expenses, conferences, and lobbying, and some is lost to waste, fraud, and abuse. For example, since 1998, the inspector general has audited 22 individual VAWA grantees. In those random audits, 21 were found to have unallowable costs, unsupported expenditures, or other serious deficiencies in how they expended taxpayer dollars. That is millions of dollars that could have helped an untold number of victims but instead were lost. Although some good accountability measures were included in the committee-reported bill, more are necessary. The substitute amendment requires audits and includes mandatory exclusions for those who are found to have violated program rules. It limits conference expenditures at the Justice Department and Health and Human Services Department unless there is proper oversight. It prohibits lobbying by grantees, and it limits administrative expenses in the government's management of the grants. Our substitute directs more money to victims of the most serious crimes than the committee bill by requiring 30 percent--not 20 percent--of the funds go toward sexual assault. It directs that 70 percent of the funds for reducing rape kit backlogs actually be used for that purpose, not the mere 40 percent in the committee-reported bill. The substitute protects victims in other ways that are not contained in the underlying bill. It contains a 10-year mandatory minimum sentence for aggravated sexual abuse. It imposes a mandatory minimum sentence of 1 year for possession of child pornography where the child depicted is under 12. That does not go far enough, but it is a step in the right direction. It is a consensus item that has passed the Judiciary Committee in the past with a strong bipartisan vote. The alternative also creates a mandatory minimum sentence of 15 years for interstate domestic violence that results in death. There are opponents of mandatory minimum sentences. The leniency-industrial complex is active in this area as in others. But we should not take too seriously the claims of opponents of the mandatory minimums that they take away judicial discretion. They think that judges should be able to give any sentence they want on these crimes, even potentially no jail time at all. Contrary to victims' groups, they fear that any requirement of jail time for these crimes will be counterproductive and lead to lower sentences. But those same opponents support the grants for arrest in the committee-reported bill. Unlike sentences, mandatory arrest policies tie the hands of law enforcement to take action against people who have not been convicted of anything. They may reduce the likelihood that the police may be called in actual cases of domestic violence. They may result in calls to the police by one person for leverage against another. They may cause other negative unintended consequences as well. Our substitute also gives the Marshals Service administrative subpoena authority to pursue unregistered sex offenders. These are individuals who are required by law to register as sex offenders but fail to comply. This is another provision that has enjoyed wide bipartisan support in the Judiciary Committee. Victims will also be helped by the substitute's requirement of an audit of the Justice Department's use of the Crime Victims Fund. When criminals are convicted and made to pay fines, these fines are placed in a fund for the sole purpose of assisting victims. However, there are questions whether the Justice Department is spending these funds only for their one permitted use. An audit is in order. And the bill also includes a bipartisan provision to enable victims to receive restitution that is owed to them but has not been paid. The IRS would be permitted to deduct the money from payments it would otherwise make to the perpetrator. Mr. President, there is broad bipartisan support for reauthorizing the Violence Against Women Act. The Hutchison-Grassley substitute would of the underlying bill reauthorize the 80 percent that enjoys that consensus. It eliminates provisions that are not consensus and would not pass the other body and become law. And it adds other provisions that are widely supported and would provide real benefits to victims of domestic violence. I urge my colleagues to support it.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, this afternoon we are considering two nominations for U.S. district judge positions in Texas. Gregg Jeffrey Costa is nominated to serve in the Southern District of Texas, while David Campos Guaderrama is nominated to serve in the Western District of Texas. Again, we are moving forward under the regular order and procedures of the Senate. With today's nomination, we will have confirmed 80 judicial nominees during this Congress. With the confirmations today, the Senate will have confirmed more than 75 percent of President Obama's judicial nominations. While we are making progress in the Senate, we continue to hear complaints about the vacancy rate. I will again remind my colleagues that of the 81 vacancies, more than 58 percent of these vacancies have no nominee. These nominations came to the committee with the support of home State Senators. They were reported out of committee by voice vote. These nominees have exceptional records and demonstrate the type of consensus nominations that can be confirmed, even in a Presidential election year. Mr. Costa received his B.A. degree in 1994 from Dartmouth College. He graduated from the University of Texas School of Law in 1999. After law school, Mr. Costa clerked for the Honorable A. Raymond Randolph on the DC Court of Appeals from August 1999 to July of 2000 and then for Chief Justice Rehnquist from July 2001 to July 2002. Between his two clerkships, he worked as a Bristol Fellow in the United States Department of Justice, Office of the Solicitor General. In 2002, Mr. Costa joined the law firm Weil Gotshal & Manges as an associate. During his time at the firm, Mr. Costa handled civil litigation matters including intellectual property, class actions, international arbitration, bankruptcy, and general commercial disputes. Mr. Costa also worked on appellate matters and a few pro bono cases as well. In 2005, he joined the U.S. Attorney's Office for the Southern District of Texas, Houston office, as an assistant U.S. attorney. Mr. Costa has worked in the criminal division of the office in the major offenders and major fraud sections, investigating and prosecuting matters in the areas of mortgage fraud, investment fraud, securities fraud, public corruption, Internet fraud, human trafficking, child pornography, and narcotics and firearms violations. As an AUSA, Mr. Costa also has handled numerous appellate matters before the U.S. Court of Appeals for the Fifth Circuit. In addition to prosecuting cases for the office, Mr. Costa serves as the deputy international affairs coordinator for the U.S. Attorney's Office. In this capacity, he helps coordinate incoming and outgoing requests on behalf of the Governments of Malaysia, Turkey, Columbia, Greece, France, and the United Kingdom. Mr. Costa also helps and provides guidance to other AUSAs on extradition matters. And in 2005, after Hurricanes Katrina and Rita, Mr. Costa served as the hurricane fraud coordinator for his office that investigated fraud cases relating to the Hurricanes. Mr. Costa's office prosecuted more than 100 individuals for crimes such as government-benefit fraud, identify theft offenses, charitable fraud, and investment fraud. The ABA Standing Committee on the Federal Judiciary gave him a unanimous rating of ``well qualified.'' We are also considering the nomination of David Campos Guaderrama, nominated to be U.S. district judge for the Western District of Texas. After graduation from Notre Dame Law School, Judge Guaderrama worked as a solo practitioner from December 1979 to August 1980. He then formed a partnership practice with his then wife. His practice focused on defending individuals in criminal cases, but he also handled some general civil, probate, and workers' compensation cases during this time. In 1987, he was appointed to serve as El Paso County's first public defender and was charged with starting up and developing an office that would be capable of handling at least 50 percent of all indigent felony cases. In November 1994, Judge Guaderrama was elected judge of the 243rd Judicial District Court of Texas. He was elected for a 4-year term and subsequently reelected on four occasions. During his term as a Texas District Court judge, he was instrumental in establishing the 243rd Drug Court Program and Access to Recovery Program. Both programs are aimed at helping rehabilitate defendants guilty of minor drug offenses through counseling and supervision, rather than incarceration. Also while on the 243rd Judicial District he served as chairman of a subcommittee that oversaw reform of the jury selection process that implemented mailing jury qualification questionnaires to potential jurors. He also piloted a program to use video conference technology to conduct arraignments. In 2008, Judge Guaderrama was an unsuccessful candidate for justice, Eighth Court of Appeals of Texas. In 2010, he was appointed by the U.S. District Court of the Western District of Texas to serve an 8-year term as a U.S. magistrate judge. He has an ABA rating of majority ``well qualified'', minority ``qualified.''

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I will vote for S. 1789, the 21st Century Postal Service Act, because it is undeniable that the Postal Service is facing a crisis and something must be done very soon. There are those who say that this bill goes too far in reforming the Postal Service and implementing uncomfortable changes, and then there are those who say that this bill does not go far enough in transforming the Postal Service to be viable in the long term. I agree that this bill is not perfect. It is a compromise so just about everyone can find something in it to dislike. However, unless we do something to help the Postal Service cut costs, the borrowing authority of the Postal Service will run out in the fall and it will be unable to make payroll. I will support this bill, imperfect though it is, because we need to make progress in addressing this looming crisis now. Otherwise, if we wait much longer, we will be faced with a choice between a shut-down of mail service across our country or a massive taxpayer bailout, both of which would hurt the economy and take money out of the pockets of hardworking Americans.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, this afternoon we are considering the nomination of Brian C. Wimes, of Missouri, to be United States District Judge for the Eastern and Western Districts of Missouri. Again, we are moving forward under the regular order and procedures of the Senate. With today's nomination we will have confirmed 78 judicial nominees during this Congress. With the confirmations today, the Senate will have confirmed more than 75 percent of President Obama's judicial nominations. I would note that in 3 years of President Obama's term, we will have confirmed four nominees as a District Judge in Missouri. This is the same number President Bush had confirmed in his 8 years. Judge Wimes is a 1990 graduate of the University of Kansas. He received his law degree in 1994 from Thurgood Marshall School of Law, Texas Southern University. Upon graduation from law school, Judge Wimes became an attorney advisor in the litigation branch of Federal Bureau of Prisons in Washington, DC. He represented the Bureau in civil actions by inmates throughout the country. In 1995, the nominee left the Bureau and became an assistant prosecuting attorney for the Jackson County Prosecutor's Office in Kansas City, MO until 2001. During his time there, he served as coordinator for the drug abatement response team; was the East Patrol community prosecutor, acting as office liaison to the community; and, in 1999, became the senior trial attorney for the drug unit. In this position he prosecuted cases involving major crimes with an emphasis on drug-related homicides. In 2001, Judge Wimes became the drug court commissioner for the court for Jackson County, MO. He was appointed for two, 4-year terms. He presided over 400 assigned cases to drug court, with a caseload of 120 to 150 docketed cases per week. After serving as the drug court commissioner for Jackson, Judge Wimes was appointed by then-Governor Matt Blunt to serve as the circuit court judge for the 16th Judicial District, Jackson County, MO. He was appointed in 2007, and retained in the 2008 election cycle. As a circuit court judge, Judge Wimes has presided over approximately 29 criminal trials and 25 civil trials that have gone to judgment. From 2008 to 2009, Judge Wimes was assigned to the family court division and heard over 500 domestic cases to judgment as well. A substantial majority of the ABA Standing Committee on the Federal Judiciary gave him a unanimous rating of qualified. Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I am here to point out that 10 years ago this very day, this Senate decided not to drill for more oil in the United States, where we know oil exists. At that time, the argument that was used was why drill because it was going to take many years to get it online. The Senate bought the argument we shouldn't drill because it was going to take too long. Today, we think about more opportunities to drill for oil in the United States. I wish to point out that the very same arguments that were used 10 years ago are being used today: If we drill today, we might not get some of that oil online for several years down the road. We want to be thinking about the future, as we should have thought about the future in 2002, 10 years ago, when we decided not to drill. Around the country, American consumers are paying near-record prices for gasoline at the pump. The current average price for gasoline is near $3.90. Since January 2009, the average price of a gallon of regular gasoline has more than doubled. In 2011, consumers spent a greater percentage of their household income on gasoline than any year since 1981, when we thought 90 cents for a gallon of gas was a lot of money. Affordable energy is a major economic issue. Paying nearly $4 for gas acts as a hidden tax and results in people having less money to spend on other things. Rising energy prices also increase the cost of doing business for job creators, taking away dollars that otherwise could go to hiring workers. We should be doing everything possible to prevent these high energy prices today or tomorrow. The Senate had an opportunity 10 years ago today to take action to increase our domestic oil supply. Unfortunately, the Senate missed that opportunity. It missed an opportunity for lower prices today and importing something less than the $830 million we spend every day to import oil. We need to keep that money in this country. Ten years ago today, the Senate considered an amendment offered by then-Senator Frank Murkowski--father to present Senator Lisa Murkowski--to open a tiny portion of the Arctic National Wildlife Refuge to oil and gas development. A vote on the cloture motion was rejected by the Democratic majority in the Senate on April 18, 2002. During that debate, opponents argued that opening ANWR to development would never supply more than 2 percent of our Nation's oil demands. They opposed it based on the belief that opening ANWR wouldn't address the real problems; namely, our dependence upon fossil fuels. They said we needed to work toward a comprehensive approach. Opening ANWR was also portrayed as a distraction from the real solutions, such as conservation, alternative and renewable energy, and less environmentally sensitive fossil energy development. Some even argued that fully inflated or low friction tires should be a larger part of our national energy policy. I recognize the need for a comprehensive, balanced national energy policy. I truly believe in an all-of-the-above approach that includes conservation, alternative and renewable energy, nuclear power, and oil and gas development. But the fact remains we were talking about these policies as solutions to our energy problems in 2002. Yet gas prices are still near $4 a gallon. I listened to dozens of speakers in the Senate that day who argued against opening ANWR because it wouldn't address our near-term energy needs. They said it would take nearly 10 years to get that oil to the consumers. Ten years ago we were told to forget about opening ANWR because development was too far down the road to impact our energy supply and energy security. Here are a few quotes from my Democratic colleagues during the debate in April 2002. I am not going to use their names. But this Democratic Senator said: I oppose the proposal to drill in the Arctic National Wildlife Refuge. Drilling in ANWR will not increase energy independence, even if we started drilling tomorrow, the first barrel of crude oil would not make it to our market for at least ten years. So it would not affect our current energy needs. Another Democratic Senator said--and these Senators are still here today: The oil exploration in ANWR will not actually start producing oil for as many as 10 years. Exploring and drilling for oil is not forward thinking. Another Democratic Senator said this: That oil would not be available for 10 years. This means drilling in ANWR would not provide any immediate energy relief for American families. Another Democratic Senator said: Developing ANWR is simply not a necessary component of a progressive energy policy for this country. For a period starting about 2012-- That is this year, understand; he was looking ahead 10 years-- For a period starting at about 2012, we would see an increase of domestic production under ANWR, if ANWR was open to development. So development would not address the near- term prices or shortages with which people are faced. Ten years down the road, here we are, but if we drilled back then we would have this oil on line and we would not be spending $830 million every day to import oil. Another Senator said this: When my colleagues come to the floor of the Senate and suggest to us that the crisis in the Middle East is a reason to drill in ANWR, that is a misleading argument because no oil will flow from ANWR until from 7 to 10 years from now. That means if you open the refuge today, you are not going to see oil until about 2012, maybe a couple of years earlier. You see, a decision made in 2002--people were looking ahead 10 years and saying it was not going to make much difference, but 2012 is here and we could have been using that oil. Another Senator said: Oil extracted from the wildlife refuge would not reach refineries for 7 to 10 years. That is the end of my quotes of several Democratic Senators who are now serving. If they are using the same argument now, are they going to be smart enough to look ahead to 2022 when maybe we could start using the oil we would start drilling for today? The defeat of the Murkowski amendment back in 2002 was then enormously shortsighted. If we had voted to open ANWR 10 years ago, that oil would be driving down the price at the pump for consumers today. You know the rule of economics; if you increase supply, you reduce price. And we would at least be keeping the money in the United States instead of spending $830 million every day to import oil. Time after time, opponents of domestic oil production have argued that because it will not lower prices at the pump today it is not worth doing. You know from the debate of 2002 that is a bunch of hogwash. Does anybody wonder if the American people wish that the Senate had opened ANWR 10 years ago? It is past time to take action to ramp up domestic production of traditional energy, energy we can harvest in this country instead of importing it and paying $830 million to import it. Greater domestic energy production would increase supply and help to lower prices. It would create American jobs. President Obama continues to push policies that contribute to higher gas prices, including restricting access to Federal lands and permitting delays, regulatory threats to refiners, and his decision to deny Keystone XL. He says he is for ``all of the above,'' but when you look at that list, he is for ``none of the above.'' By limiting domestic energy production we have less supply and higher prices. The Obama administration has made things worse by restricting access to domestic energy sources. The President's record contradicts his remarks that he is for an ``all of the above'' strategy. His policies have prevented more oil production in the United States and resulted in higher prices, lost opportunities for jobs creation, less energy security, and shipping out of the country 830 million of our dollars that could be used in this country and kept in this country, money we are spending to import oil. President Obama's denying of the Keystone XL Pipeline inhibits energy-related development that could create 20,000 jobs. Greater domestic energy production would increase supply and help to lower prices, and it would create American jobs. It is time to take action. Denying ANWR development 10 years ago was a mistake, a mistake I hope we learn a lesson from. The Senate missed an opportunity 10 years ago that would have brought gas price relief and more supply, keeping more money in this country, creating jobs in this country right now. We should not make the same mistake again. You cannot repeat that statement too often. We should not make the same mistake again. We should be looking ahead 10 years, as they were doing in 2002, but they were using it as an excuse to do nothing. So don't ever tell me don't drill today because it will not come on line until 10 years from now. That is not a very wise thing to say to me, after you said that 10 years ago. We should have learned the lesson. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, again we are moving forward under the regular order and procedures of the Senate. This year we have been in session for about 37 days, including today. During that time we will have confirmed 15 judges. That is an average of better than one confirmation for every 2\1/2\ days we have been in session. With the confirmations today, the Senate will have confirmed nearly 75 percent of President Obama's article III judicial nominations. Despite this progress, we still hear complaints about the judicial vacancy rate. We are filling those vacancies. But again, I would remind my colleagues that of the 82 current vacancies, 50 have no nominee. That is over 60 percent of vacancies with no nominee. Another complaint we hear, which is a distortion of the record, is the so-called delay in confirming nominees. Those who raise this complaint only focus on the time a nominee is reported out of committee until confirmation. But the confirmation process is more than just Senate floor action. For those who may not be familiar with the confirmation process, let me review. Once a nomination is received, the committee takes an appropriate amount of time to review the nominee's Senate questionnaire and background and review written materials. The Committee holds a hearing on judicial nominees and then holds the record open for additional written questions. Of course there is debate on the nomination in committee, then the nomination is reported to the floor. All of this takes time. Every step is important. Not all nominees make it through each step. The average time for this process for President Bush's circuit judge nominees was 350 days. That means it took, on average, nearly 12 months from the time a nomination was received in the Senate until final confirmation. For President Obama's circuit nominees the average time from nomination to confirmation is 243 days. That means President Obama's circuit nominees are being confirmed faster than those of President Bush. So to those who ask What's different about this President? I would respond that one thing that is different is that this President's circuit nominees are being treated much more fairly than President Bush's nominees were treated. As I stated, not all nominees make it through every step of the process. In the case of our nominee today, she completed that process in about 220 days, below the average for President Obama and much quicker than the average for President Bush. She will likely be confirmed and take her place on the Court of Appeals for the fourth circuit. This was not the outcome for many of President Bush's nominees to the fourth circuit. Let me review just a few of the highlights from those failed nominations. I wonder if my colleagues remember William Haynes, President Bush's nominee to sit on the fourth circuit. In the 108th Congress, my Democratic colleagues held up his nomination for 638 days on the Senate calendar alone before it was returned to the President. All in all, he put his life on hold for 1,173 days and never received an up-or-down vote. Later, at a point during the 110th Congress, the fourth circuit had a vacancy rate of 33 percent and desperately required judges. The President did his duty and submitted four nominations. Unfortunately, all of them were needlessly delayed. Judge Robert Conrad was nominated to a seat on the fourth circuit which had been designated as a judicial emergency, Both home State Senators supported his nomination. Furthermore, he had received unanimous support from the Senate on two prior occasions--first when he was confirmed to be a United States Attorney and again when he was confirmed by voice vote to be a United States District Judge for the Western District of North Carolina. The American Bar Association's Standing Committee on the Federal Judiciary unanimously gave him a rating of well qualified. Judge Conrad met every standard to be considered a well qualified, noncontroversial, consensus nominee. Yet, his nomination stalled. He was nominated on July 17, 2007. Despite his extensive qualifications, a hearing was never scheduled. On October 2, 2007 Senators Burr and Dole sent a letter to the chairman asking for a hearing for Judge Conrad. On April 15, 2008 they sent a second letter to the chairman requesting a hearing for Judge Conrad. Their request was never granted. After waiting 585 days for a hearing that never came, Judge Conrad's nomination was returned on January 2, 2009. Steve Matthews was another nominee to the fourth circuit, nominated on September 6, 2007. He was a graduate of Yale Law School and had a distinguished career in private practice in South Carolina. He also had the support of his home State Senators. On April 15, 2008 Senators Graham and DeMint sent a letter to the chairman asking for a hearing for Mr. Matthews. Despite his qualifications, Mr. Matthews waited 485 days for a hearing that never came. His nomination was returned on January 2, 2009. Rod Rosenstein was nominated to a fourth circuit seat designated as a judicial emergency on November 15, 2007. The American Bar Association's Standing Committee on the Federal Judiciary unanimously rated him well qualified. Previously, in 2005 he had been confirmed by a noncontroversial voice vote as U.S. Attorney for Maryland. Prior to his service as U.S. Attorney, he held several positions in the Departm6nt of Justice under both Republican and Democratic administrations. On June 24, 2008 Senator Specter, the ranking Republican Member, sent a letter to Mr. Rosenstein's home State Senators pointing out that the seat to which Mr. Rosenstein had been nominated had been vacant since August 2000--at the time nearly 8 years. He requested they return their blue slips on his nomination. That request was declined, reportedly because the nominee lacked ties to Maryland and was doing too good of a job as the U.S. Attorney for Maryland. I find that rationale somewhat perplexing, if not inconsistent. Nevertheless, despite his stellar qualifications, Mr. Rosenstein waited 414 days for a hearing that never came. His nomination was returned on January 2, 2009. Judge Glen Conrad was another failed nomination to the fourth circuit. Nominated on May 8, 2008 he had the support of his home State Senators, one a Republican, the other a Democrat. Judge Conrad had previously been supported by the full Senate when he was confirmed to be a United States District Judge for the Western District of Virginia by a unanimous, bipartisan vote of 89 0 in September 2003. Despite his extensive qualifications, Judge Glen Conrad waited 240 days for a hearing that never came. His nomination was returned on January 2, 2009. What was the reaction to this Democratic obstruction to President Bush's fourth circuit nominees? A December 2007 Washington Post editorial lamented the dire straits of the fourth circuit writing: ``[T]he Senate should act in good faith to fill vacancies--not as a favor to the president but out of respect for the residents, businesses, defendants and victims of crime in the region the 4th Circuit covers. Two nominees--Mr. Conrad and Steve A. Matthews--should receive confirmation hearings as soon as possible.'' In 2008, another Washington Post editorial stated that ``blocking Mr. Rosenstein's confirmation hearing . . . would elevate ideology and ego above substance and merit, and it would unfairly penalize a man who people on both sides of this question agree is well qualified for a judgeship.'' I would note that the seat to which Mr. Rosenstein was nominated went vacant for over 9 years. When President Obama made his nomination to that vacancy, the nominee fared far better. He received a hearing a mere 27 days after his nomination and received a committee vote just 36 days later. So today, as we confirm another of President Obama's nominees to the fourth circuit, I hope my colleagues understand, recognize, and acknowledge that President Obama's nominees are being treated in a fair manner. Stephanie Dawn Thacker is nominated to be United States Circuit Judge for the fourth circuit. She graduated with honors from West Virginia University College of Law in 1990 and received her B.A., magna cum laude, from Marshall University in 1987. Ms. Thacker began her legal career as an associate in the Pittsburgh office of Kirkpatrick & Lockhart, now K&L Gates. There she worked on complex commercial and asbestos defense litigation. In 1992, she worked for a brief period as an assistant attorney general in the Environmental Division of the Office of the West Virginia Attorney General. There she represented the State of West Virginia on environmental issues involving permitting and compliance. She then joined King, Allen & Betts--now Guthrie and Thomas--as an associate, where she worked from 1992 to 1994 on cases involving commercial litigation defense, white collar criminal defense, and legal malpractice and professional responsibility defense. In 1994, she joined the United States Attorney's Office for the Southern District of West Virginia as an assistant United States attorney in the General Criminal Division. As an assistant United States attorney, she prosecuted cases on a wide range of criminal matters including money laundering, fraud, firearms, and tax evasion matters. She eventually developed a niche in domestic violence, child support enforcement, and coal mine safety. In 1999, she became a trial attorney with the Department of Justice's Child Exploitation and Obscenity Section. She was promoted to deputy chief for litigation in 2002 andl principal deputy chief in 2004. As a trial attorney, she prosecuted cases around the country involving child pornography, child sexual exploitation, sex trafficking, and obscenity. As deputy chief and principal deputy chief, she was responsible for the management and professional development of the section trial attorneys. In 2006, she became a partner at Guthrie and Thomas--formerly King, Betts & Allen--where she previously worked basis as an associate. She has specialized in complex litigation, environmental and toxic tort litigation, representing large companies, as well as handling some criminal defense cases representing individuals. A substantial majority of the ABA Standing Committee on the Federal Judiciary gave her a rating of well qualified; a minority of that committee rated her as qualified.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GRASSLEY. Madam President, I ask unanimous consent to speak for 15 minutes as in morning business.

Mr. GRASSLEY. Supreme Court Justice Ginsburg, on a recent trip to Egypt, made comments that garnered public notice. She said: I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. She also spoke favorably of the Canadian Charter of Rights and Freedoms and the European Convention on Human Rights. Although some people have criticized Justice Ginsburg for speaking negatively about the U.S. Constitution while abroad, I think she has a right to say what legal documents countries should consider that are now writing constitutions. But I do not agree with her those other constitutions are better examples of constitutions today than the U.S. Constitution is. Some people who have criticized Justice Ginsburg's preference for the other constitutions she named have focused on the positive rights contained in those documents. Some of those constitutions, such as South Africa's, protect the right to ``make decisions concerning reproduction,'' to ``inherent dignity,'' and the right to have an environment protected ``through reasonable legislative and other measures that prevent pollution and environmental degradation.'' The European Convention on Human Rights guarantees a right to education. Of course, none of these constitutions contain anything like a second amendment right for the citizens to defend themselves. Our Constitution is all about limiting the power of government. Americans do not fully trust the power of government, and Americans insist on rights that are protected against government action. In other words, our Constitution was intended to last for centuries, with the same meaning, even as those principles were applied to new situations. Our judges should reflect that philosophy, which is at the heart of our Constitution. If other countries feel differently, that is their right. I think praise for those foreign constitutions rather than our own raises a much more serious issue--the role of the judiciary. Our Constitution made a judiciary that was the least dangerous branch, as Hamilton said. Policy is to be made by elected officials who answer to the voters and can be replaced; whereas, judges, under our Constitution, cannot be replaced. They have a lifetime position, short of impeachment. The foreign constitutions that were named create a much different judiciary. The Canadian Supreme Court has stated their charter of rights and freedoms ``must be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the Constitution and must, in interpreting its provisions, bear these considerations in mind.'' The European Convention has been interpreted by the European Court of Human Rights to be a ``living instrument.'' Madam President, these are explicit statements--that Justice Ginsburg's preferred constitutions are ``living constitutions.'' A living constitution is one in which the meaning changes over time. Judges decide that new circumstances require a living constitution to mean something it did not mean sometime before. They say the constitution must keep up with the times. A living constitution can mean whatever judges want it to mean, completely contrary to what our forefathers had in mind when they wrote our Constitution. Our Constitution is not a living constitution. Judges are not to make up its meaning as they go along over time. Even President Obama's Supreme Court nominees told us the role of a judge under our Constitution is not to interpret words however they believe new circumstances might warrant. ``It's the law all the way down,'' Justice Kagan said. We should be skeptical of a living constitution that opens the door for judges to impose their values, not those of the Framers of the Constitution, on the citizenry of this country. The Canadian Charter says it ``guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and Democratic society.'' The Canadian Supreme Court interprets that provision in light of a highly generalized four-part test that invites judges to insert their own policy preferences. Similarly, the South African Constitution provides that its rights can be limited if they ``are reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.'' It tells courts explicitly to apply a six-part subjective balancing test that allows judges to interpret this provision however they want. How would you like to live under a constitution such as that? These constitutions Justice Ginsburg endorses invite judges to rule however they want on any question of rights. That is not consistent with traditional American notions of the rule of law, of a government of laws and not a government of people. Some judges may prefer constitutions in which judges are free to displace democratic decisionmaking on policy questions that are to be decided by elected representatives of the people under our Constitution. I do not. Our Constitution does not. We do not live in a government of, by, and for the judiciary. But no one should think that the Canadian or the South African Constitutions fully protect rights that Americans think are precious, such as freedom of speech. Under the Canadian Charter, reasonable limits on free speech include prohibiting so-called hate speech against a group. Finally, it is important to recognize why some of us on the Judiciary Committee continue to press judicial nominees on their adherence to the Constitution without reference to foreign law. For instance, Justice Breyer has stated that foreign judges also interpret ``texts that more and more protect basic human rights.'' He has stated that he looks to the decisions of the European Human Rights Court and to Canadian cases as well, because they are ``relevant'' even if they do not control. He says, ``[W]e can learn something about our law and our documents from what happens elsewhere.'' What Justice Ginsburg did was to make very clear that which had only been implied in the past, making very clear that there are some in this country who feel that our venerable Constitution is outdated. If they treat that document as it was written and understood by the Framers, then their decisions will often lead to results they do not like as a policy matter. But if they can cite decisions from foreign courts and interpret constitutions that contain all kinds of different rights and that give judges unbridled power to make policy decisions at the expense of the elected representatives of the people, then they can reach decisions that our Constitution otherwise would not allow. It is not simply a disinterested survey of what other courts around the world are doing. It opens the door to a search for preferred liberal activist outcomes. These are the very high stakes at issue when we discuss whether it is appropriate for judges to cite or rely on foreign law in interpreting the U.S. Constitution. We need to preserve, protect, and defend the Constitution of the United States. We need to preserve, protect, and defend the rights of American citizens. Justice Ginsburg and others who have a judicial longing for other constitutions that protect different rights and give unelected judges power that, under our Constitution, self-governing people exercise themselves--I tell those judges, including Justice Ginsburg, that is the wrong approach. I yield the floor, and I suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise today in support of a bill that I am introducing on behalf of a bipartisan group of Senators, the Officer Safety Act of 2012, S. 2276. This bill allows a Federal law enforcement agent, who stops a violent crime while off-duty and is indicted in a State court for those actions, to petition for the State criminal prosecution against him to be removed to Federal court. The bill effectuates this change by amending the Federal removal statute, found in 28 United States Code, Section 1442, to clarify when a Federal law enforcement officer is acting under the color of his office. As a 2003 Judiciary Committee report stated, ``Law enforcement officers are never `off-duty.' '' Many are required to carry an off- duty weapon. When they fly on personal business, they are expected to carry their weapon and check-in with the airline as a Federal law enforcement agent so they can defend the pilots and passengers if something bad happens. In fact, Federal agents are specifically paid to be available 24 hours a day, 7 days a week. Agents can be disciplined if they are not available when called. They are not even allowed to engage in activities on their personal time that regular citizens take for granted, like coaching their kids' sports teams, if it might interfere with their ability to respond to a crisis. Federal law enforcement agents are extensively trained, at the expense of the taxpayer for the benefit of the taxpayer. They not only train in basic academies, but they are required to participate in additional and regular training and re-certifications many times each year. If training is missed or if standards are not up to par, the agent is disciplined or removed. Federal law enforcement agencies take training requirements very seriously. The United States is known for having the best trained Federal law enforcement officers in the world. So what if one of these exceptionally trained Federal law enforcement agents walks into the grocery store on a Saturday and witnesses a woman being repeatedly hit by her husband; do we want him to walk past the woman? No. The taxpayers spend money on his training so that he can protect victims, not walk away from them. In this situation, we all hope that he would use his training to protect the victim. But when he steps in to protect the victim from a crime of violence occurring in his presence, he risks state criminal prosecution and damage to his career. That might lead him to hesitate. This is contrary to good public policy. If we were the victim in this scenario, every one of us would want that Federal law enforcement officer to help us. If a Federal agent acts to protect an individual in his presence from a crime of violence, as taxpayer dollars have trained him to do, and then is indicted in State court for that act, he should have the right to defend himself within the Federal court system. So the Officer Safety Act amends the removal statute, found in Title 28, United States Code, Section 1442, to clarify when a Federal law enforcement officer is acting under the color of his office. This bill does not provide immunity for law enforcement agents, and it does not grant them additional authority. It doesn't even guarantee that the case will be moved from State to Federal court: the State will be heard and its position will be weighed by the judge before deciding if removal is appropriate. It does allow a Federal law enforcement officer/agent, who is indicted in a State court for actions related to his protection of a victim of a violent crime that is committed in the officer's presence, to petition for that criminal case to be removed to Federal court, where the officer will be required to defend his actions. Current law provides that removal is proper so long as defendants demonstrate that they are officers of the United States that acted ``under color of'' their office and have a ``colorable federal defense''. In general, a Federal agent acts ``under color of'' his office when he takes actions that are necessary and reasonable for the discharge of his Federal responsibilities. Accordingly, the prototypical example of a Federal officer acting under color of his office is a Federal law enforcement officer who kills someone while performing an act related to Federal law enforcement and, in the subsequent State homicide prosecution, claims he was acting in self-defense and/or is entitled to official immunity. The Supreme Court has upheld this prototypical example as appropriate for removal from State court to Federal court. The primary restraint on the current statute's scope is its limitation to defendants who acted under color of Federal office or, in other words, while performing official duties. Defendants must show in their petition for removal that there is a causal nexus between the actions challenged and their Federal duties. The history of the removal statute explains why this is important. The statute dates back to 1815. It was passed in response to the New England States' opposition to the trade embargo with England during the War of 1812. The law provided for the removal to Federal court of any suit or prosecution commenced in State court against a Federal customs officer or other persons enforcing Federal customs laws. Thus, Federal agents did not need to fear performing their jobs because the local authorities opposed the embargo and wanted to stop them from enforcing it. A few decades later, the U.S. Government encountered a similar problem in South Carolina, which in 1833 declared certain Federal tariff laws unenforceable within its borders. Congress responded by authorizing the removal of any suit or prosecution commenced in a State court against an officer of the United States for the enforcement of the Federal revenue laws. During the Civil War and the Reconstruction era, Congress' disenchantment with State courts in the South led to new Federal officer removal laws. In the 1863 Habeas Corpus Act, Congress provided for the removal of suits or prosecutions against persons acting under Federal authority for actions, or failures to act, during the Civil War. In addition, Congress passed a removal statute similar to those of 1815 and 1833, authorizing the removal of suits or prosecutions commenced in State court against Federal officers for actions, or omissions, related to the collection of Federal revenue. However, it was not until the enactment of the Judicial Code of 1948 that Congress extended the statute to cover all Federal officers. The courts view the history behind section 1442 and its statutory predecessors as justification for construing the statute broadly to assure the supremacy of U.S. law and protect Federal operations against interference from State judicial proceedings. This bill does not infringe upon States' rights, as they retain the same due process rights to be heard on the question of removal that have existed since the early 1800s. In fact, this Congress passed a bill by unanimous consent that amended this statute, without a word about States' rights. Today, Federal law enforcement officers, whether or not in uniform, require protections when they take actions to assist citizens. Civil liability protections are provided to officers under The Good Samaritan Act, codified at Title 28, United States Code, Section 2671. This bill, the Officer Safety Act, while modeled on the Good Samaritan Act, is narrower, more restrictive, and provides no liability protection. Rather, this bill clarifies the ``color of law'' prong required in the removal process, as courts have invited Congress to clarify. The bill makes no change to the current standards governing when removal is permissible, and therefore leaves alone existing standards and case law. But it provides that in three situations, the law enforcement officer who is a defendant in a State criminal prosecution will be deemed to have acted under color of his or her office: when the officer protects a victim from a violent crime committed in the presence of the officer; when the officer provides immediate assistance to an individual who suffered or is about to suffer imminent bodily harm; and when the officer prevents the escape of an individual the officer reasonably believes committed or was about to commit, in the presence of the officer, a crime of violence that resulted in or was likely to result in serious bodily injury. I believe that in these situations, the Federal courts should always determine that the law enforcement officer acted under the color of his or her office for purposes of determining whether to grant the officer's removal petition. But the courts remain free to determine under current law that there are other circumstances in which an officer seeking removal satisfies the color of office standard. So the bill is a modest change that nevertheless provides an important layer of safety for the people who risk their lives day-in and day-out to protect us. It will help make our communities safer and protect those who are sworn to guard and serve the American public. This principle and this bill are supported by the Federal Law Enforcement Officers Association, the Federal Bureau of Investigation Agents Association, and the National Border Patrol Council. I want to thank Senator Coons, a member of the Committee on the Judiciary, who co-chairs the Senate Law Enforcement Caucus, and is a co-sponsor on this bill. He understands the need to support law enforcement officers who risk their lives every day so that we can sleep safely at night. Further, I want to thank Senators Coburn and Sessions, also members of the Judiciary Committee and co-sponsors. They, too, understand this allows us to support Federal agents without spending a dollar. ``Law enforcement officers are never `off-duty.' '' To expect them to standby while a victim suffers violent acts in his presence is contrary to the oath they take to protect and renders their tax-funded training wasted as a citizen becomes a victim. Please join me in protecting those who protect us.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise today in support of a bill that I am introducing on behalf of a bipartisan group of Senators, the Officer Safety Act of 2012, S. 2276. This bill allows a Federal law enforcement agent, who stops a violent crime while off-duty and is indicted in a State court for those actions, to petition for the State criminal prosecution against him to be removed to Federal court. The bill effectuates this change by amending the Federal removal statute, found in 28 United States Code, Section 1442, to clarify when a Federal law enforcement officer is acting under the color of his office. As a 2003 Judiciary Committee report stated, ``Law enforcement officers are never `off-duty.' '' Many are required to carry an off- duty weapon. When they fly on personal business, they are expected to carry their weapon and check-in with the airline as a Federal law enforcement agent so they can defend the pilots and passengers if something bad happens. In fact, Federal agents are specifically paid to be available 24 hours a day, 7 days a week. Agents can be disciplined if they are not available when called. They are not even allowed to engage in activities on their personal time that regular citizens take for granted, like coaching their kids' sports teams, if it might interfere with their ability to respond to a crisis. Federal law enforcement agents are extensively trained, at the expense of the taxpayer for the benefit of the taxpayer. They not only train in basic academies, but they are required to participate in additional and regular training and re-certifications many times each year. If training is missed or if standards are not up to par, the agent is disciplined or removed. Federal law enforcement agencies take training requirements very seriously. The United States is known for having the best trained Federal law enforcement officers in the world. So what if one of these exceptionally trained Federal law enforcement agents walks into the grocery store on a Saturday and witnesses a woman being repeatedly hit by her husband; do we want him to walk past the woman? No. The taxpayers spend money on his training so that he can protect victims, not walk away from them. In this situation, we all hope that he would use his training to protect the victim. But when he steps in to protect the victim from a crime of violence occurring in his presence, he risks state criminal prosecution and damage to his career. That might lead him to hesitate. This is contrary to good public policy. If we were the victim in this scenario, every one of us would want that Federal law enforcement officer to help us. If a Federal agent acts to protect an individual in his presence from a crime of violence, as taxpayer dollars have trained him to do, and then is indicted in State court for that act, he should have the right to defend himself within the Federal court system. So the Officer Safety Act amends the removal statute, found in Title 28, United States Code, Section 1442, to clarify when a Federal law enforcement officer is acting under the color of his office. This bill does not provide immunity for law enforcement agents, and it does not grant them additional authority. It doesn't even guarantee that the case will be moved from State to Federal court: the State will be heard and its position will be weighed by the judge before deciding if removal is appropriate. It does allow a Federal law enforcement officer/agent, who is indicted in a State court for actions related to his protection of a victim of a violent crime that is committed in the officer's presence, to petition for that criminal case to be removed to Federal court, where the officer will be required to defend his actions. Current law provides that removal is proper so long as defendants demonstrate that they are officers of the United States that acted ``under color of'' their office and have a ``colorable federal defense''. In general, a Federal agent acts ``under color of'' his office when he takes actions that are necessary and reasonable for the discharge of his Federal responsibilities. Accordingly, the prototypical example of a Federal officer acting under color of his office is a Federal law enforcement officer who kills someone while performing an act related to Federal law enforcement and, in the subsequent State homicide prosecution, claims he was acting in self-defense and/or is entitled to official immunity. The Supreme Court has upheld this prototypical example as appropriate for removal from State court to Federal court. The primary restraint on the current statute's scope is its limitation to defendants who acted under color of Federal office or, in other words, while performing official duties. Defendants must show in their petition for removal that there is a causal nexus between the actions challenged and their Federal duties. The history of the removal statute explains why this is important. The statute dates back to 1815. It was passed in response to the New England States' opposition to the trade embargo with England during the War of 1812. The law provided for the removal to Federal court of any suit or prosecution commenced in State court against a Federal customs officer or other persons enforcing Federal customs laws. Thus, Federal agents did not need to fear performing their jobs because the local authorities opposed the embargo and wanted to stop them from enforcing it. A few decades later, the U.S. Government encountered a similar problem in South Carolina, which in 1833 declared certain Federal tariff laws unenforceable within its borders. Congress responded by authorizing the removal of any suit or prosecution commenced in a State court against an officer of the United States for the enforcement of the Federal revenue laws. During the Civil War and the Reconstruction era, Congress' disenchantment with State courts in the South led to new Federal officer removal laws. In the 1863 Habeas Corpus Act, Congress provided for the removal of suits or prosecutions against persons acting under Federal authority for actions, or failures to act, during the Civil War. In addition, Congress passed a removal statute similar to those of 1815 and 1833, authorizing the removal of suits or prosecutions commenced in State court against Federal officers for actions, or omissions, related to the collection of Federal revenue. However, it was not until the enactment of the Judicial Code of 1948 that Congress extended the statute to cover all Federal officers. The courts view the history behind section 1442 and its statutory predecessors as justification for construing the statute broadly to assure the supremacy of U.S. law and protect Federal operations against interference from State judicial proceedings. This bill does not infringe upon States' rights, as they retain the same due process rights to be heard on the question of removal that have existed since the early 1800s. In fact, this Congress passed a bill by unanimous consent that amended this statute, without a word about States' rights. Today, Federal law enforcement officers, whether or not in uniform, require protections when they take actions to assist citizens. Civil liability protections are provided to officers under The Good Samaritan Act, codified at Title 28, United States Code, Section 2671. This bill, the Officer Safety Act, while modeled on the Good Samaritan Act, is narrower, more restrictive, and provides no liability protection. Rather, this bill clarifies the ``color of law'' prong required in the removal process, as courts have invited Congress to clarify. The bill makes no change to the current standards governing when removal is permissible, and therefore leaves alone existing standards and case law. But it provides that in three situations, the law enforcement officer who is a defendant in a State criminal prosecution will be deemed to have acted under color of his or her office: when the officer protects a victim from a violent crime committed in the presence of the officer; when the officer provides immediate assistance to an individual who suffered or is about to suffer imminent bodily harm; and when the officer prevents the escape of an individual the officer reasonably believes committed or was about to commit, in the presence of the officer, a crime of violence that resulted in or was likely to result in serious bodily injury. I believe that in these situations, the Federal courts should always determine that the law enforcement officer acted under the color of his or her office for purposes of determining whether to grant the officer's removal petition. But the courts remain free to determine under current law that there are other circumstances in which an officer seeking removal satisfies the color of office standard. So the bill is a modest change that nevertheless provides an important layer of safety for the people who risk their lives day-in and day-out to protect us. It will help make our communities safer and protect those who are sworn to guard and serve the American public. This principle and this bill are supported by the Federal Law Enforcement Officers Association, the Federal Bureau of Investigation Agents Association, and the National Border Patrol Council. I want to thank Senator Coons, a member of the Committee on the Judiciary, who co-chairs the Senate Law Enforcement Caucus, and is a co-sponsor on this bill. He understands the need to support law enforcement officers who risk their lives every day so that we can sleep safely at night. Further, I want to thank Senators Coburn and Sessions, also members of the Judiciary Committee and co-sponsors. They, too, understand this allows us to support Federal agents without spending a dollar. ``Law enforcement officers are never `off-duty.' '' To expect them to standby while a victim suffers violent acts in his presence is contrary to the oath they take to protect and renders their tax-funded training wasted as a citizen becomes a victim. Please join me in protecting those who protect us.